Hi All After a very long fight with GE Money (well over 2 years and we've been at court for 18 months but keep revising dates as we have been in discussions about a settlement) they have finally made an offer thats in the same ballpark as my original figure. The figure they have come up with is for the original PPI amount of £1,024.89 plus a daily interest figure calculated at 35p a day for 2064 days. Obviously this is nothing like the FOS methodology, but neither is my original court submission (compound spreadsheet from here from ages ago). So a couple of considerations: 1. As the loan was paid of after 24 months, if I take this amount in respect of the PPi refund, could I then go back and argue that the settlement figures for the loan were incorrect ? The settlement figure thing s in line with FOS guidance and I don't want to lose out on this aspect because he difference if PPI hadn't been applied is £2000 + 8% interest so a lot more than the current offer ! 2. Or I could go back to GE and suggest we use FOS methodology - this wouldn't be as much as the 2 claims would be seperately as they currently stand, but may be a more honest approach. But they have dragged this on for over 2 years, so not sure I need to be too moral about it. I've got another week before I need to respond to GE so any thoughts would be appreciated. Best Wishes Popeye

Hi Guys OK - not sure how to go about the appeals process but will look around the forums. I'll also look into getting some legal advice. Probably won't be on again until, wednesday but again any advice appreciated. Thanks popeye

Sorry I've not been around - away with work again and they monitor our internet usage so I can't log on (prob lose my job if they knew I was in debt becasue of security risk etc etc). Anyway, had to ask for an adjournment because I couldn't attend as I had to go to Southampton with work (job is very much to do with handling problems at clients premises, so we often need to go with very little notice). Obviously wouldn't have chosen not to attend - but the facts of the thing were so strong it's difficult to believe it didn't even get to court ! However, Restons true to form have now applied for a charging order, so i need to do something to move forward - but not sure what options are now open to me, so I'd appreciate some advice. If it is a question of trying to sort out a payment plan - OK. But if I can a appeal or go for a set aside I'd like to try it. Clearly the charging order is another subject and I'll start reading up on the various threads. But any thoughts on the SJ would be good. I've read about people asking for transcripts of the hearing - and again this might be worth doing, so if anyone knows how to do this, please let me know. Similarly, it's looking more and more like seeking legal representation might be my best bet, so if anyone knows any reputable firms in Lancashire who may be able to help, again, please let me know. Todays post also contained a letter from my employer advising me that I may be at risk of redundancy - so all going great ! Should have said cobblers to it, and gone to the SJ hearing but I suppose hindsight is a wonderful thing. Any thoughts - positive or otherwise - will be much appreciated. Thanks popeye

Hi All Just returned from a couple of weeks working away to find a letter from my local county court ordering that: 1) The defendants informal application for an adjournment be refused 2) The defendants informal application for leave to amend the defence be refused 3) Summary judgement is entered in favour of the claimant against the defendant for the sum of xxxxx together with interest in the sum of xxxxx and costs assessed in the sum of xxxxxx, a total of xxxxx. This sum shall be paid forthwith. Disappointed, shocked etc etc - but I suppose the thing now is what can I do about it? Anything - or should I just sort out a payment plan with them. I'm also super confused about all the additional charges, it was bad enough that they added around 17% in 'collection charges' in the first place, these additional charges have aded another £1K onto the bill. As always, any help or advice appreciated !! Popeye

Hi All Just to update Got the revised witness statement off yesterday - thanks to all for the input. The guidelines for how best to compile it and the advice on formatting etc were invaluable. Best Wishes Popeye

Thanks Angel - good luck to you too If I can get this Summary judgement thing out of the way I think I'll be OK (this seems to be a standard thing for Restons if you read through the threads) Get 2 bites of the cherry that way. Anyway, loads of help on here - just don't leave it to the last minute as I've done with this one! Could be a long night for me i think So much seems to have gone on with this, i'm not sure what to take out and what to leave in.... But second draft on it's way soon. popeye

Thanks PT I'm in the middle of my redraft now, but will use the template suggested. I've taken out pretty much all of the statute that was in the previous version, but added in the s61(1)(a) stuff... I'll post again when rewritten. Thanks again for your help with this, I know you've got tons of stuff on and I appreciate it ! popeye

OK - I think I get what you are saying and I'll have a redraft asap!

Sorry about the spelling - I think I've got PeterBard's keyboard No offence intended Peter !!

Hi All This business of them sending different agreeements in response to differeent requests (posts 1379/1380/1381) - is part of the problem in my currelnt case with HFC. They sent me one 'true copy' of the original, however they sent something completely different whenI sent a CPR reques.Restons have now applied for a summary judgement and if we do end up at trial I wondering if there is anything to stop them producing a 3rd document as their first 2 probably aren't going to do the trick? Bet they wouldn't let me do it though..... Popeye

Sorry about the 'readability' of this - it looked Ok when I previewed it. Should have added that the reason I've put all this stuff in is a) to try and show that they haven't complied with my SAR despite loads of requests b) to show that they have already sent 2 copies of the supposed T & Cs for this account, both of which are incorrect. Will they be able to supply yet another set of T & Cs when they see this (probably already seeing it LOL !!) - or do they have to stick with what they've sent to court this time round? :-|

Hi All This is where I'm upto at the moment - but going to look at putting some more information in about the s65 legislation as this seems to carry more weight than anything else in here. Not sure if I'm clouding the issue with all of the other guff I've put in though? I've put the default issue in becasue I'm pretty sure I have the envelope and it was sent second class. But I'm not at home and don't have access to my files, so can't be certain. But I do tend to keep everything a la CAG advice! Anyway, here goes......I'm sorting out formatting, doc refs etc now. Witness Statement of ME 30th Jan 2010 Between: HFC Bank Limited (Claimant) -And- POPEYE (Defendant) _________________________ WITNESS STATEMENT OF POPEYE DATED 30th January 2010 _________________________ 　 　 1. I, Popeye being the Defendant, am a litigant in person in this case. I make this witness statement in opposition to the claimant's application for summary judgment. 2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information. 3.The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. Indeed, the applicant has failed to supply any evidence which supports that the claim should be disposed of without trial., and the respondent would seek to draw to the courts attention the following matters 4. The applicant/claimant failed to supply the respondent/defendant with any of the documents which the applicant mentioned in their particulars of claim and are now before the court until asked to do so via a CPR request. 5. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence as I would wish to do at trial. 6. This is particularly relevant in this instance as the documentation - both supplied and not supplied, is key to the proceedings as: a) Given that neither Restons or HFC Banks have complied with my Subject Access Request, the account should be considered to be in dispute and as a result no legal proceedings should have commenced. b) The documents supplied by HFC Bank and Restons are completely different - yet both are confirmed by the parties involved to be correct copies of both my original agreement and terms and conditions. Most importantly, the information put forward by both Restons and HFC in respect of the terms were not those which applied when the Agreement was entered into. Consequently, there is an irredeemable breach of Section 65 of the Consumer Credit Act. d) The claimant is put to strict proof that the Default Notice ‘recreated’ at HFC 3 was in fact issued by first class post in ‘in line with the Claimant’s standard procedure’ TIMELINE FOR THE CASE 7. The document at Pop1 provides a copy of the information supplied by HFC Bank in response to my original request under s78 of the Consumer Credit Act 1974. Page 2 shows that this is in fact an agreement between Miss xxxxx, 4 xxxxxxxx Close, wherever and HFC Bank rather than myself.. Worryingly, at P4 this also includes information provided to ‘protect you against fraudulent use’. 8. My reply to HFC Bank at POP highlights this error and points out that as a result HFC were now in default of my original request. 9. Their reply (POP 3) states on P2 ‘We therefore enclose a blank copy of your original signed agreement form for your marbles card account, which highlights the full terms and conditions applicable to your agreement and a copy of all Notice of Variation along with the latest variation notice issued in respect of your account. The agreement form contains the original terms and conditions that you accepted when you entered into the agreement. (my underline and referenced at a later point) 10. On xxxxx, I sent a Subject Access Request to HFC (POP 4) by recorded delivery. Having received no reply, I sent a further letter on xxxxx (POP 5, again by recorded delivery), advising HFC that as they had failed to supply me with the information requested, the account was now in dispute. 11. POP 6 is HFCs reply asking for a copy of my driving licence or passport in order to proceed with my request. It also refers to a letter asking for the same dated xxxx, however, I have no knowledge of any such request being received. 12. On xxxxx, I received my first letter from Restons (POP 7 for reference) 13. My replies (POP 8 to Restons; POP 9 to HFC) make it quite clear that I am still awaiting a reply to my Subject Access Request and until this is complied with the account is still in dispute. For the sake of completeness, these letters also contain copies of both my passport and driving licence. 14. At POP 10 Restons alleged that ‘Our client has already dealt with your complaint and provided the relevant documentation as stated in their letter dated xxxx. Your complaint is deemed resolved’. 15. As my Subject Access Request was not submitted until xxxx this was clearly not the case. However I sent a further letter, again by recorded delivery on xxxxx (POP 11). This makes it clear that I have not received the information requested from any of the parties involved, and makes a further request under the Data Protection Act 1998. This letter also makes it plain that the account is still in dispute until either Restons or their client complies with my request. 16. On xxxxxx, Restons commenced county court proceedings against me in a clear contradiction of the Consumer Credit Act legislation. (POP 12) 17. Restons letter dated xxxx (POP 13) acknowledges my request, but alleges that they can only provide ‘data of which we are data controllers’ 　 18. Following my request for information under the Civil Procedure Rules (R4), Restons did supply me with copies of the information they outline at para 6 of their evidence statement (I.e R1 and R2). However, HFC 1 did not have the reverse ‘terms and conditions’ page which is now included. 19. All other correspondence with Restons is as suggested in para 6. POINTS IN DISPUTE AND SUPPORTING LEGISLATION 20. The applicant has served a copy of the agreement (R 1), which its claim is based upon and as outlined above I wish to raise issues, which I would expect to expand upon at trial. The claimant clearly states that the agreement relied upon is a microfiche copy of the signed application form (for simplicity, now further referred to in this document as "the credit agreement" or "the agreement"). The Civil Evidence Act 1995[C38 (s13)] states: 13 Interpretation In this Act "civil proceedings" has the meaning given by section 11 and "court" and "rules of court" shall be construed in accordance with that section; "document" means anything in which information of any description is recorded, and "copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly; "hearsay" shall be construed in accordance with section 1(2); "oral evidence" includes evidence which, by reason of a defect of speech or hearing, a person called as a witness gives in writing or by signs; "the original statement", in relation to hearsay evidence, means the underlying statement (if any) by - (a) in the case of evidence of fact, a person having personal knowledge of that fact, or (b) in the case of evidence of opinion, the person whose opinion it is; and "statement" means any representation of fact or opinion, however made. By virtue of the Civil Evidence Act 1995, the credit agreement supplied by the claimant, here onward should be treated as hearsay evidence. 21.. The agreement is not headed correctly as required by Regulation 2(1) and Schedule I Consumer Credit (Agreements) Regulations 1983 : (1) Subject to paragraph (2) below, a heading in one of the following forms of words- (a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974"; (b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974"; © "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or (d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require. (2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words -"Credit Agreement regulated by the Consumer Credit Act 1974". (3) Where the document and a pawn-receipt are combined, the words " and Pawn Receipt," shall be inserted in the heading after the word "Agreement". (4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate. (5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the heading. 22. Furthermore, R1 is clearly headed ‘Your Priority Application ’ and goes onto say ‘ IT IS IMPORTANT THAT YOU CAREFULLY READ THE NOTICE OVERLEAF BEFORE YOU SIGN THIS APPLICATION.’ 23. Pages 3 R1 seems to clarify this even further with a box on what would have been the front page of a booklet which states ’This is a copy of your agreement for you to keep. It includes a notice about your cancellation rights which you should read.‘ 24. Neither my name, address, signature or any of the prescribed terms appear anywhere within this document. 25. The statement made by F A R Bennion, the Draftsman of the Consumer Credit Act 1974 relating to s127 (3) states: Consumer Credit Act 1974 s 127(3) As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed. 167 Justice of the Peace (2003) 773. 26. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states: Where a claim is based upon a written Agreement: (1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable. 27. However, should the court find that the documents supplied at Pages 1 & 2 of R1 do in fact constitute an agreement, I would like to draw attention to Clause 4 of the Terms and Conditions document headed ’CHARGES’ 28. This states that: a)For Balance Transfers the APR is 15.9% You will be charged interest at the rate of 0% per month during and fixed for the period of 6 months following the opening of the Account after which it will revert to the variable rate of 1.240% per month b)For Cash Advances other than Balance Transfers, the APR is 19.9%. You will be charged a handling fee of 1.75% of the advance amount subject to a minimum fee of £2.50, together with interest at the variable rate of 1.378% per month c) For Transactions the APR is 15.9%. You will be charged interest at the variable rate of 1.240% However, the initial statements on the account (MH 14 and MH 15) show the APRs to be Retail Transactions & Balance Transfers 12.9% Cash Advances 16.9% 29. The court may be interested to know that the APRs on the document originally put forward as a true copy by HFC Bank (POPx ), show different interest rates to both the statements and the copy now suggested as the original terms and conditions. 30. Consequently, whichever copy of the terms and conditions supplied HFC seek to rely on, there is clearly an irredeemable breach of Section 65 of the Consumer Credit Act, and the claimant case cannot succeed. 31. The applicant has supplied a copy of the default notice (R3), which is related to the claim, and I would like to put the claimant to strict proof that this was in fact a) served and b) issued by first class post as issue by second class post would make the notice defective. 32. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. (2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain- (a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974; (b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and © statements in the form specified in paragraphs 4, 5, 7 [8A] and 9 to 11 of that Schedule 10. At schedule 2 Para 3 of the regulations it states the following: Details of breach of agreement and action required to remedy, or pay compensation for, the breach… 3 a specification of: - (a) the provision of the agreement alleged to have been breached; and (b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either © if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or (d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid. 33. The Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post which states: 2. Practice Direction Service of Documents - First and Second Class Mail "With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore. 1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post. 2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:- (a) in the case of first class mail, on the second working day after posting; (b) in the case of second class mail, on the fourth working day after posting. "Working days" are Monday to Friday, excluding any bank holiday. 3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used. 34. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 11 days for compliance not 14 days as required. 35. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, in this judgment Kennedy LJ states inter alia : This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'. 36. Therefore, it would be the respondents’ position that the applicant/claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective. 37. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession a full compliment of the documents which the claimant has now disclosed. This despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now come to light in view of the claimants disclosure and therefore respectfully request that I be given the opportunity to defend this action. I make this request with the overriding objective in mind as set out with CPR 1. 38. I therefore request that the court do dismiss the applicant's application for summary judgment. I believe that the facts stated in this witness statement are true. Signed Popeye Dated Jan 2010 　

If I can fend off the SJ, I'll probably look at getting some representation at the hearing, so the points can be argued correctly.

Hi Guys Thanks for the interest ..... All very weird. My signature on the document is Oct 04 - they say Nov 04 (no date for their signature) The APRs on none of the documents they've sent match those on my first statement - and they don't match each other So 2 differnt agreements, 2 different APRs - neither match those on first statement. I've also a late charge of £ 25 applied to the account which directly contradicts the information on the first 'copy' they sent which suggested default charge of '£12' . I'm off to look at the thread PT suggested before trying to cobble together the WS - which I'll post up as soon as I've done it. Thanks again all

When they sent their response to my CPR request I received these...... http://i882.photobucket.com/albums/ac26/popeye2929/HFCApplication.jpg http://i882.photobucket.com/albums/ac26/popeye2929/TCsOverleaf.jpg And another copy of the pages in the link below (which I'd ignored !) However, I've got to compile a witness statement to contest an application for Summary Judgement and in addition to issues with the Defualt Notice etc, several thoughts come to mind: a) Clearly the document that HFC sent to me purporting to be a 'true copy' wasn't at all given the copy that has recently been issued. It does however, very conveniently have all the prescribed terms etc on it (but default charges of £12 in October 2004...) and has is plainly headed 'Application Form' on one side 'CCA Agreement'. All very enforceable b) Given what they've supplied in response to the CPR they clearly hadn't actually complied with my request and the account could be claimed to have been in dispute when they issued a county court claim against me (not sure if I'm on dodgy ground here...?) c) The thing I have signed is headed 'Your Priority Application' and in the box headed Important - Use Of Your Information' it very clearly states 'It is important that you carefully read the notice overleaf before you sign this application' d) The document i haven't really paid much attention to until now saying BENEFICIAL TERMS & CONDITIONs in bold on the front has a box on it which says 'This is a copy of your agreement for you to keep. It includes a notice about your cancellation rights which you should read. Which implies that this is in fact the agreement - and it doesn't have my name on it, nor does it have any signatures (Do you think HFC know that this is the actual agreement and that's why they've sent it out in response to my requests?) In HFC blurb to the court they say 'The first page of DOC 1 contains the defendants details, reverse includes T& C including the PTs. The original would have been a single document and therefore the first two pages are copies of the same orignal agreement' I'm pretty much 100% certain this isn't the case............ Apologies for the novel, but if anyone has any input I'd be really grateful Thanks Popeye